Citation NR: 9624701
Decision Date: 08/30/96 Archive Date: 09/04/96
DOCKET NO. 93-13 971 ) DATE
)
)
On appeal from the
Department of Veterans Affairs(VA) Regional Office(RO) in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for tinnitus.
2. Entitlement to an increased (compensable) evaluation for
residuals of Shell Fragment Wounds (SFW) of the back and
buttocks.
3. Entitlement to service connection for a low back
disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
M. Colleen Canovas, Associate Counsel
REMAND
The veteran served on active duty from January 1951 to
January 1954 and from May 1955 to July 1972.
Service medical records reveal in December 1964, the veteran
was struck in his back and buttocks by the fragments of an
exploding mortar shell. He was initially treated in the
field to remove some of the fragments and then transferred to
Saigon Hospital for treatment. On examination, there were
superficial wounds of the left buttock and back. He was
discharged to duty after being hospitalized for 4 days.
The mortar explosion and the veteran’s combat arms military
specialty establish that he was exposed to an acoustic trauma
in service. There were findings in service of high frequency
hearing loss, first noted on January 1966 audiometric
examination.
Postservice medical records reveal that the veteran received
treatment for low back complaints, beginning in June 1987.
August 1990 x-ray studies of the lumbar spine revealed
metallic densities posterior to L3 and posterior and to the
right of S1.
On October 1991 VA examination, audiometric studies revealed
a bilateral high frequency sensorineural hearing loss. The
diagnoses, in pertinent part, were multiple shrapnel wounds,
chronic low back pain with evidence of spondylosis, most
marked at L5-S1, and high frequency sensorineural hearing
loss that is most likely due to his previous inservice
history of noise exposure.
The veteran asserted at a September 1992 hearing that he has
had ringing in his ears since a December 1964 mortar blast in
service. In addition, he stated at the hearing at the RO
that he suffered shell fragment wounds injuries to his back
and buttocks as a result of the December 1964 mortar blast.
In a statement dated in June 1995, he said he felt that the
blast from the mortar round was the cause of his back pain.
In May 1995, the Board of Veterans’ Appeals (Board) remanded
the case to the RO for additional development. In specific,
the RO was requested to obtain outstanding service medical
records and all medical records pertaining to the treatment
that the veteran received for the low back disorder and
residuals of the shell fragment wounds. Upon receipt of this
information, the RO was to schedule another VA orthopedic
examination to determine the nature and etiology of any low
back disorder.
The RO received an updated medical report from Dr. Hines
dated in July 1995; however, the complete treatment records
were not received. In addition, the veteran testified at the
hearing at the RO in September 1992 that he received
treatment, including three epidural shots, at Monroe General
Hospital. He did specify dates of treatment. The RO has not
attempted to obtain those medical records. Also, at the
hearing, the veteran discussed a work-related back injury
that he suffered in June or July 1990. The RO has not
attempted to obtain the medical records of that incident.
The outstanding medical records may contain critical
information about the veteran’s claims for service connection
for the low back disorder and for an increased rating for the
residuals of SFW of the back and buttocks. The Board finds
that the claim for service connection for a low back disorder
is inextricably intertwined with the claim for an increased
rating for residuals of a SFW.
In the remand of May 1995, the Board specifically requested
that the VA orthopedic examiner comment on whether there is
an etiologic relationship between the veteran’s service-
connected residuals of shell fragment wounds of the back and
buttocks and any other current back disorder. If not, the
examiner was to comment on whether the service-connected
residuals of shell fragment wounds of the back and buttocks
aggravated any back disorder by increasing or otherwise
accelerating the underlying back disability. The examiner
was requested to evaluate the residual scars as a result of
the shell fragment wounds and identify all affected muscle
groups. The report was to contain the complete rationale for
all conclusions and opinions expressed. The VA examiner who
conducted the August 1995 VA examination did not provide a
report responding to all of the requests noted above.
Although tinnitus was not confirmed by a VA examination, the
veteran also has never denied having tinnitus as he has not
been examined specifically for such disorder. It is
noteworthy that the etiology of tinnitus has on occasion been
attributed to damage to the acoustic nerve, which is present
with sensorineural hearing loss. Here, the evidence appears
to reflect that the veteran has sensorineural hearing loss
which is service related.
In view of the foregoing, the Board finds that the current
record is inadequate to render a fully informed decision.
To ensure that the VA has met its duty to assist the veteran
in developing the facts pertinent to the claim, the case is
again REMANDED for the following:
1. The RO should request the veteran to
identify the names, addresses, and
approximate dates of treatment for all
health care providers who may possess
additional records pertinent to his claim.
After any necessary authorization for
release of medical information is secured
from the veteran, the RO should obtain
copies of those treatment records
identified by the veteran which have not
been previously secured, including the
Monroe General Hospital records and
complete records from Dr. Hines.
2. The RO should forward the claims
folder to the VA orthopedic examiner who
examined the veteran in August 1995 for an
explanation of the rationale for all
conclusions and opinions expressed. The
examiner should provide an opinion of
whether it is more likely than not that
any part of the veteran’s current back
disorder resulted from or was increased by
the service-connected residuals of shell
fragment wounds to the back and buttocks.
If the latter is the case, the examiner
must identify the portion of the
disability that is attributed to the shell
fragment wounds. If the orthopedist deems
it necessary or is unavailable and the
opinion must be obtained from another
specialist, the veteran should be
scheduled for another examination. Such
examination should establish the nature
and etiology of any low back disorder as
well as the current severity of the
residuals of shell fragment wounds of the
back and buttocks. All indicated studies
should be performed and the examination
should be conducted in accordance with the
pertinent provisions of the VA Physician's
Guide for Disability Evaluation
Examinations. The veteran's claims file
must be provided to and reviewed by the
examiner prior to the examination of the
veteran. The report of examination should
contain a complete account of all
manifestations of residuals of shell
fragment wounds of the back and buttocks,
including any residual scars as a result
of shell fragment wounds and an
identification of all affected muscle
groups and the complete rationale for all
conclusions and opinions expressed.
3. The veteran should then be afforded a
VA otolaryngologic examination to
determine if he has tinnitus and, if so,
the probable etiology of the disorder.
4. Thereafter, the RO should ensure that all
requested development has been accomplished.
If any development requested above is
incomplete, corrective action should be
implemented. Then, the veteran's claims
should be readjudicated.
If the benefits sought remain denied, the veteran and his
representative should be provided an appropriate
supplemental statement of the case and afforded an
opportunity to respond. Then, the case should be returned
to the Board for further appellate consideration, if
otherwise in order.
In taking this action, the Board implies no conclusion,
either legal or factual, as to the ultimate outcome
warranted. No action is required of the veteran until he is
notified.
GEORGE R. SENYK
Member, Board of Veterans’ Appeals
The Board of Veterans’ Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1995).
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